B-41468, MAY 2, 1944, 23 COMP. GEN. 837

B-41468, MAY 2, 1944, 23 COMP. GEN. 837

LEAVES OF ABSENCE UNDER SECTION 2.1 (A) OF THE ANNUAL LEAVE REGULATIONS, PROVIDING THAT PERMANENT EMPLOYEES MAY BE CREDITED WITH 26 DAYS' ANNUAL LEAVE AT THE BEGINNING OF A CALENDAR YEAR IN LIEU OF THE MONTHLY CREDIT, IN CASES WHERE IT IS KNOWN AT THE TIME OF GRANTING ANNUAL LEAVE THAT AN EMPLOYEE IS TO RETIRE BEFORE THE CLOSE OF THE CALENDAR YEAR, THE EMPLOYEE MAY NOT BE CREDITED OR GRANTED LEAVE IN ADVANCE OF THE AMOUNT AUTHORIZED TO BE EARNED UP TO THE DATE IT IS KNOWN THAT HE IS TO RETIRE. WHERE, IN ACCORDANCE WITH SECTION 2.1 (A) OF THE ANNUAL LEAVE REGULATIONS, A PERMANENT EMPLOYEE WAS ADVANCED THE FULL 26 DAYS' ANNUAL LEAVE FOR A CALENDAR YEAR, AND IT WAS NOT KNOWN AT THE TIME SUCH LEAVE WAS ADVANCED THAT THE EMPLOYEE WAS TO RETIRE BEFORE THE END OF THE YEAR, THERE IS NO REQUIREMENT UNDER SECTION 4.7 OF THE REGULATIONS THAT HE REFUND OR HAVE DEDUCTED FROM HIS SALARY THE VALUE OF THE EXCESS ADVANCE LEAVE AT THE TIME OF HIS RETIREMENT. RETIREMENT FOR ANY CAUSE IS A "SEPARATION" FROM THE SERVICE WITHIN THE MEANING OF THE PROVISION OF SECTION 4.2 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS THAT " ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE, WHETHER BY SEPARATION, FURLOUGH, OR RESIGNATION," AND, THEREFORE, THE GRANTING OF LEAVE ON LEAVE IS NOT AUTHOR DURING THE PERIOD OF TERMINAL ANNUAL LEAVE GRANTED IMMEDIATELY PRECEDE AN EMPLOYEE'S RETIREMENT. THE ONE-HALF DAY ANNUAL LEAVE CREDIT AUTHORIZED UNDER SECTION 2.1 (A) OF THE ANNUAL LEAVE REGULATIONS FOR EMPLOYEES WHO HAVE BEEN CONTINUOUSLY EMPLOYED FOR AN ENTIRE QUARTER MAY BE CREDITED TO AN EMPLOYEE WHO IS ON THE ROLLS OF A DEPARTMENT OR AGENCY AT THE END OF THE QUARTER, IRRESPECTIVE OF WHETHER HE IS IN AN ACTIVE DUTY OR A LEAVE STATUS. A PERMANENT EMPLOYEE WHO IS PAID FOR 30 DAYS--- A MONTH'S SALARY--- FOR THE THIRD MONTH OF A QUARTER HAVING 31 DAYS (QUARTERS ENDING IN MARCH OR DECEMBER) AND WHO CONTINUOUSLY HAS BEEN EMPLOYED FROM JANUARY 1, MAY BE CONSIDERED, EVEN THOUGH HIS LAST DAY OF SERVICE IS ON THE 30TH DAY OF THE MONTH, AS HAVING BEEN "CONTINUOUSLY EMPLOYED FOR THE ENTIRE QUARTER-YEAR ENDING IN SUCH MONTHS" WITHIN THE MEANING OF SECTION 2.1 (A) OF THE ANNUAL LEAVE REGULATIONS SO AS TO ENTITLE HIM TO THE FULL MONTHLY AND QUARTERLY ANNUAL LEAVE CREDIT AUTHORIZED THEREIN.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MAY 2, 944:

I HAVE YOUR LETTER OF APRIL 15, 1944, AS FOLLOWS:

THE COMMISSION DESIRES TO SUBMIT FOR YOUR DECISION THE FOLLOWING QUESTIONS ARISING UNDER EXECUTIVE ORDER NO. 9414, JANUARY 13, 1944, PRESCRIBING REGULATIONS RELATING TO ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES:

QUESTION 1. MAY AN EMPLOYEE, WHO IS RETIRING AT A DATE PRIOR TO THE CLOSE OF THE CALENDAR YEAR, BE CREDITED WITH THE FULL TWENTY-SIX DAYS OF ANNUAL LEAVE AND GRANTED THE FULL AMOUNT OF SUCH LEAVE EVEN THOUGH IT IS NOT SUBSEQUENTLY EARNED?

QUESTION 2. MAY THE ADDITIONAL QUARTERLY CREDIT UNDER SECTION 2.1 (A) OF THE REGULATIONS BE GIVEN TO AN EMPLOYEE WHO, UPON COMPLETION OF A QUARTER, IS ON THE ROLLS OF THE DEPARTMENT OR AGENCY WHETHER ON ACTIVE DUTY OR LEAVE STATUS?

QUESTION 3. MAY A PERMANENT EMPLOYEE WHO HAS BEEN CONTINUOUSLY EMPLOYED FROM JANUARY 1 BE GIVEN THE FULL MONTHLY AND QUARTERLY CREDIT UNDER SECTION 2.1 (A) OF THE REGULATIONS IF HIS LAST DAY OF SERVICE IS SATURDAY, MARCH 29, THE AGENCY PAYS HIS SALARY THROUGH MARCH 30 ( SUNDAY, A NON-WORK DAY), AND MONDAY IS THE 31ST?

AN EARLY REPLY TO THE FOREGOING QUESTIONS WILL BE APPRECIATED.

THE PROVISIONS OF THE NEW LEAVE REGULATIONS FOR CONSIDERATION, PARTICULARLY WITH REFERENCE TO QUESTION 1, ARE SECTION 2.1 (A), 4.2 (B), AND 4.7, PROVIDING AS FOLLOWS:

SECTION 2.1 * * *

(A) PERMANENT EMPLOYEES SHALL BE CREDITED WITH LEAVE AT THE RATE OF TWO DAYS PER CALENDAR MONTH PLUS AN ADDITIONAL 1/2 DAY IN MARCH, JUNE, SEPTEMBER, AND DECEMBER TO EMPLOYEES WHO WERE CONTINUOUSLY EMPLOYED FOR THE ENTIRE QUARTER-YEAR ENDING IN SUCH MONTHS; OR, A CREDIT OF 26 DAYS MAY BE GIVEN AT THE BEGINNING OF THE CALENDAR YEAR IN WHICH IT ACCRUES IN LIEU OF THE MONTHLY CREDIT: PROVIDED, THAT SHOULD AN EMPLOYEE SEPARATE FROM THE SERVICE BEFORE THE EXPIRATION OF THE CALENDAR YEAR SUCH CREDIT WILL BE REDUCED PROPORTIONATELY. THE MINIMUM CREDIT FOR LEAVE SHALL BE THE HOURLY EQUIVALENT OF 1/2 DAY, AND ADDITIONAL CREDITS SHALL BE IN MULTIPLES THEREOF.

SECTION 4.2 * * *

(B) ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE, WHETHER BY SEPARATION, FURLOUGH, OR RESIGNATION. IN SUCH CASES THE ACCRUAL OF LEAVE SHALL CEASE AT THE CLOSE OF THE LAST DAY ON WHICH HE WAS PRESENT FOR DUTY, AND THE FINAL DATE OF SEPARATION SHALL NOT BE EXTENDED BY THE GRANTING OF SICK OR COURT LEAVE: PROVIDED, THAT THIS SUBSECTION SHALL NOT APPLY TO EMPLOYEES WHO ARE ON TERMINAL LEAVE ON THE DATE OF ISSUANCE OF THIS ORDER.

SECTION 4.7 IN CASE OF THE SEPARATION OF AN EMPLOYEE WHO IS INDEBTED FOR ADVANCE LEAVE, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM. THIS SECTION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT, OR REDUCTION OF FORCE, OR IN CASE AN EMPLOYEE WHO IS NOT FOUND ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE MEDICAL CERTIFICATE.

RETIREMENT FOR ANY CAUSE IS A SEPARATION FROM THE SERVICE WITHIN THE MEANING OF THE QUOTED LEAVE REGULATIONS. REFERRING TO SECTION 2.1 (A), IF IT BE KNOWN AT THE TIME OF GRANTING LEAVE THAT AN EMPLOYEE IS TO RETIRE BEFORE THE CLOSE OF THE CALENDAR YEAR, THE REGULATION REQUIRES A PROPORTIONATE REDUCTION IN THE LEAVE CREDIT OF 26 DAYS TO WHICH THE EMPLOYEE OTHERWISE WOULD HAVE BEEN ENTITLED JANUARY 1. ALSO, SECTION 4.2 (B) OF THE REGULATIONS WOULD PROHIBIT THE GRANTING OF LEAVE ON LEAVE DURING THE PERIOD OF TERMINAL ANNUAL LEAVE GRANTED IMMEDIATELY PRECEDING RETIREMENT. REFERRING TO SECTION 4.7 THERE APPEARS NO REQUIREMENT TO RECOVER FOR ADVANCE ANNUAL LEAVE GRANTED AN EMPLOYEE WHO HAS RETIRED DURING A CALENDAR YEAR BUT, OF COURSE, THAT SECTION OF THE REGULATIONS--- HAVING IN MIND SECTION 2.1 (A) ALSO--- WOULD RELATE ONLY TO CASES IN WHICH IT WAS NOT KNOWN AT THE TIME THE LEAVE WAS ADVANCED THAT THE EMPLOYEE WAS TO RETIRE PRIOR TO THE END OF THE CALENDAR YEAR. COMPARE SECTION 3.9 OF THE NEW LEAVE REGULATIONS. IN OTHER WORDS, READING TOGETHER THE THREE SECTIONS OF THE REGULATIONS ABOVE QUOTED, THE CONCLUSION IS REQUIRED THAT AN EMPLOYEE MAY NOT BE CREDITED OR GRANTED LEAVE IN ADVANCE OF THE AMOUNT AUTHORIZED TO BE EARNED UP TO THE DATE IN THE CALENDAR YEAR IT IS KNOWN THE EMPLOYEE IS TO RETIRE. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE IN CASES WHERE IT IS KNOWN AT THE TIME OF GRANTING LEAVE THAT THE EMPLOYEE IS TO RETIRE PRIOR TO THE CLOSE OF THE CALENDAR YEAR, AND IN THE AFFIRMATIVE, WHERE SUCH FACT BE NOT KNOWN AT THE TIME OF GRANTING ADVANCE LEAVE.

QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE. SEE QUESTION AND ANSWER 4, DECISION OF APRIL 15, 1944, B-41136, 23 C.G. 789, TO YOU.

REFERRING TO QUESTION 3, IF AN EMPLOYEE BE PAID FOR 30 DAYS--- A MONTH'S SALARY--- FOR THE THIRD MONTH OF A QUARTER HAVING 31 DAYS (QUARTERS ENDING IN MARCH OR DECEMBER) THE EMPLOYEE MAY BE REGARDED AS HAVING BEEN "CONTINUOUSLY EMPLOYED FOR THE ENTIRE QUARTER-YEAR ENDING IN SUCH MONTHS" WITHIN THE MEANING OF SECTION 2.1 (A), SUPRA. SEE THIRD PARAGRAPH OF CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 471, DATED FEBRUARY 26, 1944, AND THE TABLE ISSUED IN CONNECTION THEREWITH ENTITLED " ANNUAL LEAVE ( PERMANENT EMPLOYEES) FIRST YEAR.' ACCORDINGLY, QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.